Date: 03-24-2018

Case Style: Jonathan Arvizu v. City of Pasadena

Case Number: B277951

Judge: Curry

Court: California Court of Appeals Second Appellate District Division Three on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Roland Wrinkle and Lars C. Johnson

Defendant's Attorney: Michele Beal Bagneris and Ann Sherwood Rider

Description: Plaintiff and Appellant Jonathan Arvizu sued the City of
Pasadena after he fell over a retaining wall located beside a
recreational trail in the City’s Arroyo Seco Natural Park,
resulting in devastating personal injuries. Arvizu had entered the
Park in the dark, pre-dawn hours, while it was closed, in order to
go “ghost hunting” with a group of friends. While taking a
shortcut to reach the trail, he lost his footing, careened across the
trail, and fell over the wall.
He appeals the trial court’s grant of summary judgment.
The trial court held that “trail immunity” under Government
Code section 831.4, subd. (b)1 – which provides that a public
entity “is not liable for an injury caused by a condition of” any
trail used for recreational purposes – barred Arvizu’s section 835
claim for dangerous condition of public property. The trial court
also held that Arvizu failed to raise a triable issue concerning
whether the retaining wall was substantially dangerous when
used with due care. It therefore granted summary judgment on
the additional ground that the embankment was not a dangerous
condition of public property per sections 830(a) and 835.2

1 Future statutory references are to the Government Code
unless noted.
2 The trial court did not reach other grounds raised by the
City in support of its summary judgment motion.
3
The Legislature provided for trail immunity to encourage
government entities to keep trails and parkland open to the
public. “[E]nsuring immunity for dangerous conditions on
recreational trails of all kinds ‘encourage[s] public entities to
open their property for public recreational use.’ [Citation.] ‘The
actual cost of . . . litigation [over injuries suffered by . . .
recreational users of . . . paths], or even the specter of it, might
well cause cities or counties to reconsider allowing the operation
of a . . . path, which, after all, produces no revenue.’ [Citation.]
‘ “No doubt it is cheaper to build fences and keep the public out
than to litigate and pay three, four, five or more judgments each
year in perpetuity. But that would deprive the public of access to
recreational opportunities. If public entities cannot rely on the
immunity for recreational trails, they will close down existing
trails and perhaps entire parks where those trails can be
found.” ’ ” (Montenegro v. City of Bradbury (2013)
215 Cal.App.4th 924, 932) (Montenegro).
The Legislature first enacted the trail immunity statute
more than 50 years ago.
3 Its goal of preserving the public’s access
to trails and open space recalls iconic California conservationist
John Muir’s teachings that we all need access to wildlands and
open space, “where nature may heal and give strength to body
and soul alike.”
4 Now, with California’s population approaching
40 million, and especially in Los Angeles County, where more

3 Statutes 1963, chapter 1681. The current language dates to
1970. (See Historical and Statutory Notes, 32 Pt. 2 West’s Ann.
Gov. Code (2012 ed.) foll. § 831.4, p. 78)
4 Muir, The Yosemite (1912) page 256.
4
than a quarter of the State’s residents reside,5 the need to
preserve access to public open space is even more pressing due to
the relative scarcity of public parkland.
6
We recognize trail immunity comes at a cost to those denied
recovery for their injuries on public land. But so did the
Legislature, and we must defer to its calculus. Our task is to
probe the boundaries of the trail immunity statute to determine
whether it applies to this case. For the reasons discussed below,
we conclude it does. Therefore, we affirm on trail immunity
grounds. Because that disposes of the entire case, we decline to
address additional grounds that might warrant summary
judgment, whether embraced by the trial court or asserted by the
City.

5 Population figures are based on the U.S. Census Bureau’s
July 2017 estimates, available at

[as of Feb.27, 2018].
6 For example, the City of Los Angeles ranks 74th out of the
100 largest U.S. cities in the Trust for Public Land’s Parkscore 2017
analysis, which considers park acreage, facilities and investment,
and access. (Available at [as of
Feb. 27, 2018].) The Los Angeles County Department of Parks and
Recreation published a countywide assessment of available parks
and open space in 2016. (Available at
[as of Feb. 27, 2018].)
5
STANDARD OF REVIEW
“A party is entitled to summary judgment only if there is no
triable issue of material fact and the party is entitled to judgment
as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant
moving for summary judgment must show that one or more
elements of the plaintiff's cause of action cannot be established or
that there is a complete defense. (Id., subd. (p)(2).) If the
defendant meets this burden, the burden shifts to the plaintiff to
present evidence creating a triable issue of material fact. (Ibid.)
A triable issue of fact exists if the evidence would allow a
reasonable trier of fact to find the fact in favor of the party
opposing summary judgment. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493].)
“We review the trial court’s ruling on a summary judgment
motion de novo, liberally construe the evidence in favor of the
party opposing the motion, and resolve all doubts concerning the
evidence in favor of the opponent. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460 [30 Cal.Rptr.3d 797,
115 P.3d 77].) We must affirm a summary judgment if it is
correct on any of the grounds asserted in the trial court,
regardless of the trial court’s stated reasons. [Citation.]” (Grebing
v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631,
636-637.)
6
FACTS AND PROCEDURAL BACKGROUND
On the evening of September 14, 2013, Arvizu went to his
friend Ben’s house to watch a pay-per-view boxing match on
television.7 At about 1:00 a.m. on September 15, 2013, he received
a call from his friend Lalo to “hang out,” so he and Ben went to
Lalo’s house where they met up with Lalo and three other
friends, Frijol, Jerry, and Max.
Sometime around 3:00 a.m., the six friends decided it would
be fun to go “ghost hunting” at the Colorado Street Bridge in
Pasadena. Built in 1913, the bridge is known for its distinctive
Beaux Arts arches, and is sometimes referred to as “Suicide
Bridge.” The young men had heard ghost stories about it. The
bridge rises 150 feet above the Arroyo Seco stream, and crosses
the Arroyo Seco Natural Park.
Owned and operated by the City of Pasadena, the Arroyo
Seco Natural Park is that city’s largest public open space. While
not a wilderness, like the mountains that so inspired Muir, it
contains approximately 22 miles of trails and myriad recreational
opportunities. Its trails link to those of the Angeles National
Forest, and the Rim of the Valley trail system. They also offer
access to a variety of recreational facilities, including
playgrounds, multipurpose fields, a casting pond, an archery
range, an aquatic center, a museum, a golf course, and the Rose
Bowl. The Arroyo Seco stream passes through the Park.

7 We refer to the people who accompanied Arvizu to the
Arroyo Seco Natural Park by their first names, or nicknames, as
that is how the parties refer to them. Although we have not been
directed to support in the record, Arvizu’s opening brief tells us
he was 21 years old when injured.
7
Lalo drove the six young men (in his five-passenger car) to
the Park. The Park is closed from dusk to dawn. At the first place
the group tried to enter the Park, they found locked gates and
fencing too high to jump over. When the Park is open, the Arroyo
Seco Trail (Trail) can be accessed from 10 different trailheads.
Sometime in the early hours around 3-4:00 a.m. (the exact
time is disputed but immaterial), Lalo parked his car in an
unmarked paved area at the intersection of Arroyo Boulevard
and Arroyo Drive, across the street from the Park. The young
men got out of the car, crossed Arroyo Boulevard, and entered the
Park. Pasadena Municipal Code section 3.24.110 (A)(23) makes it
illegal to be in the Lower Arroyo section of the Park, where the
young men entered, and where the accident occurred, from dusk
to dawn.
Ben testified that he had been there before and knew about
a trailhead that provided access to the portion of the Trail under
the bridge, but “didn’t want to walk the whole thing. I just
wanted to get to that part of the trail” under the bridge.
So they took a shortcut to the Trail. Ben and the others
started to walk down a natural slope, into the Arroyo Seco (except
Jerry, who remained behind). There was no pathway where they
walked down the slope, although the Trail ran below them,
roughly parallel to the stream. They were heading toward the
Trail, traveling in a direction roughly perpendicular to its path.
It was dark. None of them had a flashlight. There may have
been some light from a streetlamp on Arroyo Boulevard. But
there was no moonlight.
They were someplace they weren’t supposed to be, breaking
the law, taking a shortcut in the dark, doing something they were
unprepared for. That’s when the trouble started.
8
Arvizu headed down the slope. He did not know where they
were going; he merely followed his friends. He does not recall if
he was wearing his prescription glasses. Arvizu, who was
wearing 1-2 year-old athletic shoes, started to slide in the loose
dirt. He grabbed a pipeline that was above ground, and used it to
assist in his descent. But the pipeline ended before he was all the
way downslope.
He could see his friends standing below him, on or near the
Trail. Letting go of the pipe, he continued down the slope, which
became steeper as he neared the bottom. He tried to slow himself
down, but was unable to do so. He lost his footing and tumbled
head over heels. Unable to slow down as he reached the Trail, he
traveled all the way across it.
The Trail, at that location, is relatively level and proceeds
along the top of, and just behind, an approximately 10-foot-high
concrete retaining wall or embankment. After crossing the Trail,
Arvizu sailed over the retaining wall, hit a tree limb, and landed
on the dirt and rocks below. There was no guardrail.
Ben, who was on the Trail as he watched the accident
happen, testified he saw Arvizu coming down the slope, “trying to
get his body to adapt to the speed that he was going, but he just
couldn’t. He was – once he hit the trail, it was already too late.”
Because he had been there before in daylight, Ben knew there
was a drop-off at the retaining wall, but didn’t think to mention it
to the others because he thought they would see it. Arvizu
testified he didn’t see the drop-off that night.
The City indicated it did not know who built the trail or
retaining wall, or when they were built. But an expert retained
by Arvizu located records that the slope in the area of Arvizu’s
accident had been extensively modified from 1952-1956 as part of
9
construction of an abutment to the State Route 134 (Ventura
Freeway) Bridge, which also crosses the Arroyo Seco near the
point of the incident. The expert said the work included
“construction of a conventional concrete retaining wall to protect
the slope and abutment from scour and erosion during flooding in
the [Arroyo Seco stream] channel,” and “placement of fill soil
behind the retaining wall to raise grade.” Plaintiff offered no
evidence of prior accidents at the site.
Another expert for Arvizu, Brad Avrit, provided
photographs of the accident site. These photographs show the
Trail traveling close behind, and roughly parallel to, the top of
the concrete retaining wall, as do other photographs. The trial
court sustained the City’s objection to Avrit’s opinion that the
wall was dangerous when used with due care because it was not
obvious to members of the general public, noting Avrit “does
not . . . discuss whether the wall would be obvious during
daylight, which is the only time when the park is open. He
therefore fails to discuss whether the wall was dangerous when
used with due care.”
DISCUSSION
As noted above, the trial court granted summary judgment
to the City on two alternative grounds. The first was the City is
immune from liability under the trail immunity statute, section
831.4, subd. (b). The second was there was no dangerous
condition of public property, because there was no evidence that
the area was unsafe when used with due care. We affirm on the
first ground, which is dispositive.
10
Section 831.4 provides in relevant part:
“A public entity . . . or a grantor of a public easement to a
public entity for any of the following purposes, is not liable
for an injury caused by a condition of:
(a) Any unpaved road which provides access to
fishing, hunting, camping, hiking, riding,
including animal and all types of vehicular riding,
water sports, recreational or scenic areas and
which is not a (1) city street or highway or
(2) county, state or federal highway or (3) public
street or highway of a joint highway district,
boulevard district, bridge and highway district or
similar district formed for the improvement or
building of public streets or highways.
(b) Any trail used for the above purposes.
(c) Any paved trail, walkway, path, or sidewalk on an
easement of way . . . .”
Because the unpaved Trail is a trail used for hiking and
access to recreational and scenic areas, (b) is the relevant
subdivision. (Amberger-Warren v. City of Piedmont (2006)
143 Cal.App.4th 1074, 1078 (Amberger-Warren) [“The trail
immunity provided in subdivision (b) of the statute extends to
trails that are used for the activities listed in subdivision (a), and
to trails that are used . . . for access to such activities.”].)
Subdivision (a) only applies to roads, and subdivision (c) applies
only to a paved trail, so they are inapplicable in this case.
In an effort to escape trail immunity, Arvizu argues
strenuously that the statute is inapplicable because (1) he was
not using the trail, and (2) he was not injured by the trail or any
condition of the trail, but instead by the lack of guardrails or
11
warnings along the retaining wall. He asserts these defects had
nothing to do with the trail’s location and design. None of his
arguments is well-taken.
In keeping with these arguments, Arvizu’s complaint
identifies the alleged dangerous condition as: “a ten feet high [sic]
man-made wall which created a dangerous drop off from the
adjacent terrain and which was obstructed and obscured by
foliage and other growth, particularly at night when there was
minimal lighting at best, without providing any warning,
guarding or safety features to ensure that anyone traversing said
property would not fall from said man-made drop off to the hard
ground below and suffer serious injury.”
8 He disavows any
contention that the slope he traveled down was a dangerous
condition, or that the Trail (or any condition of the trail) caused
his injury. His expert identifies the alleged dangerous condition
as the lack of warnings or a guardrail “along the edge of, or
adjacent to, the concrete wall to minimize potential exposure to
the fall hazard.”
Arvizu’s first argument, that he was not using the Trail, is
contrary to the undisputed evidence. The group headed down the
slope for the purpose of reaching the Trail. The rest of the group
(except Jerry) was on or near the Trail at the time of the accident.
As Ben’s testimony confirms, Arvizu too, was on the Trail –
albeit, briefly – before falling off the concrete retaining wall. He
had to cross the Trail to get to the wall, and would not have
suffered his injuries had he not crossed over the Trail.

8 The complaint initially contained a negligence claim, but it
appears to have been abandoned or dismissed by the time the
trial court decided the summary judgment motion. In any event,
negligence is not a theory Arvizu pursues in this appeal.
12
His remaining arguments, as the trial court noted, are
refuted by Amberger-Warren. In that case, the plaintiff was
injured while visiting an unleashed dog park operated by the City
of Piedmont. When she went up a pathway in the park, she was
bumped by a dog, “slipped on some debris on the pathway, and
fell backward, landing ‘part-way off’ the pathway. To avoid going
down the hill next to the pathway, she grabbed an exposed
cement edge as she fell, and injured her hand in the process.”
(Amberger-Warren, supra, 143 Cal.App.4th at p. 1078.) She
contended that trail immunity did not apply because her injury
was not caused by a condition of the trail. Rather, she maintained
that the accident resulted from “other dangerous conditions,
allegedly unrelated to the trail, that defendant created, including:
allowing dogs to run unleashed in the park; permitting debris to
accumulate on the trail; failing to install a guardrail where the
accident occurred; and locating the trail in a dangerous area, i.e.,
next to a slope onto which people could fall.” (Id. at p. 1083.)
The court rejected these arguments. First, it observed that
it is well-established that trail immunity covers negligent
maintenance of a trail, so defendant could not be liable for the
debris on the trail. (Amberger-Warren, supra, 143 Cal.App.4th at
p. 1084.) Second – and more relevant to the claims asserted here
– the court held that trail immunity must extend to claims
arising from the design of a trail, such as claims for lack of a
handrail. (Id. at pp. 1084-1085.) “We presume that there are
many miles of public trails on slopes in this state that could be
made safer with handrails, and that handrails would perhaps
enhance the safety of all trails, wherever located, that bear
pedestrian traffic. But to require installation of handrails along
every public trail where it might be reasonably prudent to do so
13
would greatly undermine the immunity’s objective of encouraging
access to recreational areas,” because the burden and expense of
doing so might cause the government agencies to close them to
public use. (Ibid.)
Finally, the Amberger-Warren court rejected the argument
that immunity did not apply because plaintiff identified the hill
next to the trail, rather than the trail, as the dangerous
condition. The court reasoned that the condition of the hill is not
unrelated to the trail, because the trail is what provides access to
the hill, and exposure to the alleged danger. “Plaintiff is in effect
arguing that the trail is situated in a dangerous location
[citation], but location, no less than design, is an integral feature
of a trail, and both must be immunized for the same reasons.”
(Amberger-Warren, supra, 143 Cal.App.4th at p. 1085.) “To accept
plaintiff’s argument would be to require installation of handrails
or other safety devices on trails, or relocation of trails, whenever
the surroundings could otherwise be considered unreasonably
dangerous. The likely and unacceptable result, which the
immunity was created to avoid, would be the closure of many
trails in areas that could be deemed at all hazardous.” (Ibid.)
So, too, in this case. At the location where Arvizu was
injured, the Trail runs along the top of the concrete retaining
wall. Very little space separates the edge of the trail and the top
of the wall. Any guardrail or warning signs would therefore have
to be placed along the trail. For the reasons articulated in
Amberger-Warren, the City of Pasadena is immune from claims
that warnings or guardrails are required to protect against falls
from the Trail over the concrete retaining wall, or that the Trail
should be relocated to a safer location, because these claims
concern the location and design of the trail.
14
Like the court in Amberger-Warren, “we would like to live
in a world of resources sufficient to guarantee reasonable safety
at all times, [but] ‘users of recreational trails . . . generally
understand the risk of injury inherent in [their use],’ and
recognize that ‘ “[a] large portion of the activities comprising
modern public park and recreation programs . . . might well be
curtailed, deferred or even completely eliminated if the risk of
tort liability were to impose unduly large obligations upon the
public treasury.” ’ ” (Amberger-Warren, supra, 143 Cal.App.4th at
p. 1085, quoting Treweek v. City of Napa (2000) 85 Cal.App.4th
221, 234 & fn. 9.)
We note that cases following Amberger-Warren underscore
its holdings. For example, in Prokop v. City of Los Angeles (2007)
150 Cal.App.4th 1332, 1335, the court upheld trail immunity
against a claim by a bicyclist who sued the City for injuries
suffered when, after ignoring a sign instructing him to “ ‘WALK
BIKE,’ ” he collided with a chain-link fence immediately after
exiting the City’s bikeway. Having rejected the bicyclist’s claim
that the bikeway was not covered by trail immunity, the court
addressed his contention that immunity was inapplicable because
his injury was caused by the design of the bicycle gate, rather
than the condition of the bikeway. Relying in part on AmbergerWarren,
the court reaffirmed that trail immunity extends to
claims arising from the design of a trail. (Id. at pp. at
pp. 1341-1342.) The court also rejected the bicyclist’s contention
that trail immunity did not apply because his injury occurred
outside the immediate confines of the bikeway. (Id. at p. 1342.)
And the court rejected the bicyclist’s contention that his duty to
warn claim was not also barred by trail immunity. (Ibid.)
15
Similarly, in Montenegro, the court affirmed summary
judgment on trail immunity grounds against the plaintiff, who
allegedly sustained injuries by falling over a protruding tree
trunk while walking along the City of Bradbury’s Royal Oaks
Recreational Trail. The undisputed evidence established that the
path was designed and used to expand bicycle, equestrian,
pedestrian and recreational access in Bradbury and the
neighboring community of Duarte. But Montenegro argued,
among other things, that she did not use the trail for recreational
purposes; she used it merely to avoid traffic on the nearby road,
as a pedestrian ordinarily would use a sidewalk. The court held
that “[t]he fact that a trail has a dual use – recreational and nonrecreational
– does not undermine section 831.4, subdivision (b)
immunity.” (Montenegro, supra, 215 Cal.App.4th at p. 932.) As
applied to this case, Montenegro supports the conclusion that
trail immunity does not depend on the nature of Arvizu’s brief
use of the Arroyo Seco Trail, but instead derives from the
uncontested recreational nature of the Trail itself. Montenegro
also reaffirms that trail immunity applies to any trail developed
and used for recreational purposes, regardless of any unnatural
conditions or the urban location of the trail. (Id. at p. 931.)
Leyva v. Crockett & Co., Inc. (2017) 7 Cal.App.5th 1105
(Leyva), is another recent case applying trail immunity. In that
case, Crockett, the owner and operator of a golf course, granted
easements to the County of San Diego for a public, unpaved,
recreational and hiking trail running along the border of the golf
course. A six-foot-high chain-link fence and a line of eucalyptus
trees separated the trail from the golf course in the area of the
13th hole. As the Leyvas walked along the trail adjacent to the
13th hole, a stray golf ball struck one of them in the eye, causing
16
permanent injury. They sued Crockett. The trial court granted
summary judgment for Crockett based on trail immunity. (Id. at
pp. 1107-1108.)
The Leyvas contended trail immunity did not apply because
the injury was caused by Crockett’s failure to erect safety
barriers on the 13th hole of the golf course, not by a condition of
the trail. The Court of Appeal disagreed. Relying on AmbergerWarren,
the court held that trail immunity must extend to claims
arising from the design of the trail, as well as its maintenance,
and that location, no less than design, must be immunized for the
same reasons. The injured plaintiff “would not have been struck
by the golf ball if he had not been walking on a trail located next
to the golf course. Just as the trail’s location next to a hill in
[Amberger-Warren] is an integral feature of the trail, so is the
trail’s location next to the golf course. Further, it makes no
difference whether the alleged negligence in failing to erect safety
barriers along the boundary between the golf course and the trail
occurred on the golf course or on the trail itself because the effect
is the same.” (Leyva, supra, 7 Cal.App.5th at pp. 1110-1111.)
Analogizing to the handrails discussed in Amberger-Warren, the
court noted that pathways along golf courses could be made safer
by erecting high barriers between the two, but “the burden and
expense of erecting barriers to make recreational trails entirely
safe from errant golf balls would chill private land owners, such
as Crockett, from granting public easements to public entities
along golf courses, resulting in closure of such areas to public
use.” (Id. at p. 1111.) “Crockett,” the court continued, “is
absolutely immune from liability under section 831.4 arising from
injuries caused by conditions of the trail, including injuries
arising from the trail’s location and design.” (Leyva, at p. 1111.)
17
Finally, Arvizu directs our attention to Garcia v. American
Golf Corp. (2017) 11 Cal.App.5th 532 (Garcia), which became
final after briefing was completed in this case. Coincidentally, the
case concerns other features of the Arroyo Seco Natural Park
unrelated to this case: the commercially operated, revenuegenerating
Brookside Golf Course, and the nearby paved
pedestrian walkway along the Rose Bowl Loop. (Id. at p. 536.)
In Garcia, a child was struck in the head and badly injured
by an errant golf ball while his mother was pushing him in a
stroller on the walkway. The child and his mother sued American
Golf for negligence and the City for dangerous condition of public
property. (Garcia, supra, 11 Cal.App.5th at p. 537.) The trial
court granted the City’s motion for summary judgment on trail
immunity grounds. (Id. at p. 539.)
A different division of this court reversed. It assumed,
without deciding, that the paved pedestrian walkway was a trail
for purposes of section 831.4. And it concluded that even if the
City could claim trail immunity with respect to the alleged unsafe
condition of the walkway (exposure to errant golf balls), it could
not do so for the alleged unsafe condition of Brookside Golf
Course (insufficient barriers or unsafe design). The two, it
concluded, were not sufficiently related. (Garcia, supra,
11 Cal.App.5th at pp. 544-546.)
In doing so, it distinguished Amberger-Warren, Prokop, and
Leyva, principally on the ground that Brookside Golf Course is a
“commercially operated, revenue-generating enterprise.” (Garcia,
supra, 11 Cal.App.5th at pp. 545-546.)
18
The court in Garcia assumed that imposing liability on the
City for its revenue-generating golf course likely would spur
correction of the defects at the golf course, which it assumed
could be paid for out of the revenue generated, and would be
unlikely to cause closure of the walkway. “As a commercial
enterprise that generates revenue, the Brookside Golf Course can
pay for safety features . . . . It can obtain insurance, and it can
pay lawyers and judgments.” (Garcia, supra, 11 Cal.App.5th at
p. 545.)
“Based on these considerations,” the court held “a public
golf course cannot assert a trail immunity defense when: (1) the
golf course is adjacent to a trail abutting a public street; (2) the
golf course is a commercially operated, revenue-generating
enterprise; (3) the golf course has a dangerous condition that
exposes people outside it to a risk of harm from third parties
hitting errant golf balls; and (4) the dangerous condition of the
golf course caused harm to a user of the trail.” (Garcia, supra,
11 Cal.App.5th at p. 546.)
This case, of course, does not involve a golf course or any
revenue-generating City asset. Therefore, Garcia is inapposite,
and of no assistance to Arvizu’s effort to avoid trail immunity.

Outcome: For the reasons discussed above, we conclude that Arvizu’s claim against the City of Pasadena is barred by trail immunity pursuant to section 831.4, subd. (b). The judgment is affirmed on that basis. The City is awarded its costs on appeal.

Plaintiff's Experts:

Defendant's Experts:

Comments: